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RULING
[1] The plaintiff, Professor Etim Moses E.ssien, instituted the substantive
action against the defendants to wit the Republic of the Gambia and the
University of the Gambia, wherein the following reliefs are sought inter
alia:
a) A declaration that the action and conduct of the Republic of the Gambia
and University of the Gambia by engaging the applicant to render expert
technical services to them from 5 February, 2004 to 26 January 2005 (a
period of one year) without an equal pay for the said services amounted to
economic exploitation of the applicant and a breach of his right to equal
pay for equal work.
b) A declaration that the action and conduct of the Republic of the Gambia
and University of the Gambia as aforesaid violated articles 5 and 15 of the
African Charter on Human and Peoples� Rights and article 23 of the Universal
Declaration of Human Rights, 1948 both of which the Republic of the Gambia
signed and acceded to respectively.
[2] Within the proceedings by the plaintiff, the defendants brought an
application for preliminary objection seeking three reliefs in the main as
follows:
1) That the plaintiff failed to join the Commonwealth Secretariat which is
necessary party to the claim and who were the architects of the employment
relationship between the plaintiff and the defendants which is the main
issue of the action.
2) The applicant in bringing this matter before this Court has failed to
exhaust the local remedies available under articles 50 and 68 of the African
Charter on Human and Peoples� Rights which is the international norm under
which this action is brought before this Court.
3) That the applicant�s claim for violation of his fundamental rights based
upon facts showing unresolved/unrenewed contract of service, counter offers
and claims based on quantum merit is incompetent before the court.
[3] The defendants further distilled from the above relief the following
issues:
1) Whether the non-joinder of the Commonwealth Secretariat as a party to the
suit did not affect its competence and consequently the jurisdiction of the
Court to adjudicate thereon.
2) Whether the applicant�s claim is competent before the court having failed
to exhaust local remedies available to him as stipulated by article 56(5) of
the African Charter in view of his claim being based on articles 60 and 66
thereof.
3) Whether the applicant�s claim for violation of his fundamental rights
based upon facts showing unresolved/unrenewed contract of service, counter
offers and claims based on quantum merit is competent before the court.
4) Whether in the circumstances of paragraphs 1 to 3 above the court can
properly exercise jurisdiction on applicant�s suit as constituted.
With these reliefs and issues, learned counsel to the parties put in their
written addresses and adopted same for the consideration of this preliminary
objection.
THE LEGAL ARGUMENTS BY THE PARTIES
[4] Learned counsel for the defendants made his submission on three main
issues upon which the preliminary objection should be resolved in their
favour. He submitted on issue one that the basis of the plaintiffs claim was
the contract of service granted him by the Commonwealth Secretariat and it
was essential for an action based on such contract to join the Commonwealth
Secretariat as a necessary party and where the plaintiff failed to join such
a necessary party, the action should fail as the Court is divested of its
jurisdiction to adjudicate on the matter. In furtherance of the above
justification, counsel reiterated the fact that the contract with
Commonwealth Secretariat had a clause for arbitration which had not been
pursued when the dispute arose before the plaintiff accessed this Court.
Another point counsel canvassed related to the violation of the doctrine of
audi alteram partem and that the said violation rendered the suit
incompetent and relied on the case of Olajide Afolabi v Federal Republic of
Nigeria, 2004 ECW/CCJ/04 at pages 65- 66 wherein this Court stated thus:
It is a well established principle of law that a court is competent when it
is properly constituted as regards numbers and qualifications of the members
of the bench, and no member is disqualified for one reason or another; and
the subject matter of the case is within its jurisdiction and there is no
feature in the case which prevents the court from exercising its
jurisdiction and the case comes before the court initiated by due process of
law and upon fulfilment of any condition precedent to the exercise of
jurisdiction.
[5] In reply, learned counsel to the plaintiff made submissions on several
issues on these terms. On the first issue, he contended that the non-joinder
of the Commonwealth Secretariat as a party did not violate the doctrine of
audi alteram partem and consequently, same cannot render the suit improperly
filed as to affect the jurisdiction of the Court. He referred to the cases
of Afolabi v Federal Republic of Nigeria (2004) supra; Madukola v Nkemdillm
(1962) 2 SCNLR 341; AG Lagos State v Attorney-General of the Federation
(2003) NWLR (Pt 833) at page 74 and submitted that the ratio decidendi of
the cases cited by the defendants are not on all fours with the case at hand.
On the non-joinder of Commonwealth Secretariat, counsel submitted that the
Commonwealth Secretariat is not a necessary party to this suit and that the
non-joinder did not divest this Court of its jurisdiction to hear and
determine the suit on merit. Furthermore counsel stated that, the
relationship between the plaintiff and the Commonwealth Secretariat ended/expired
on 4 February 2004 when the contract between them came to an end and that
made the Commonwealth Secretariat an unnecessary party to warrant the
joinder as a party. Still on the joinder, counsel to the plaintiff stated
that since there is no relief sought against the Commonwealth Secretariat
and the Commonwealth Secretariat became an unessential party for them to be
joined as a party to the action. He urged the Court to dismiss the
preliminary objection on that ground.
[6] On issue two, counsel to defendants contended that the plaintiff�s claim
was incompetent for failure to exhaust local remedies available to him as
stipulated in article 56(5) of the African Charter on Human and Peoples�
Rights on the grounds that his claim is based on articles 50 and 68 thereof.
He contended that the Court cannot exercise jurisdiction over the
plaintiff�s claim in violation of articles 56(5) and 60 of the African
Charter which enjoined that a plaintiff shall exhaust local remedy before he
can access the Court as provided under article 10 (5) of the Supplementary
Protocol. He stressed that article 4(g) of the revised Treaty enjoined that
the Member States of the Economic Community of West African States (ECOWAS),
to ensure the recognition, promotion and protection of human and peoples�
rights in accordance with the provisions of the African Charter on Human and
Peoples� Rights. In reply, counsel to the plaintiff was of the view that
this arm of objection was misconceived and that the provisions of articles
30 to 68 of the African Charter on Human and Peoples� Rights are not
synonymous with the Community Court of Justice and are therefore
inapplicable to this Court. He urged the Court to dismiss the objection.
[7] On issue three. Counsel to the defendant submitted that the case
bordered principally on unlawful or wrongful termination of the respondents�
appointment and not human rights violations. On the contrary, counsel to the
plaintiff submitted that the plaintiffs claim is not predicated on a breach
of contract of employment with the defendants but the breach of fundamental
rights to equal pay for equal work done. He reiterated that human rights are
political, social, economic and cultural rights. He submitted that rights
falling under the above stated breakdown of human rights are justiciable and
the preliminary objection should be dismissed.
DELIBERATION OF THE COURT
[8] The Court gave every issue arising from the application a thorough
examination except the matters touching on the substantive/main case. For
clarity, these issues are summarised as follows: that the plaintiff failed
to join the Commonwealth Secretariat which is a necessary party to the claim
and who were the architects of the employment relationship between the
plaintiff and defendants, which is the main issue of the action.
[9] On the issue of competence, it is trite that competence of the Court is
enshrined in articles 9 and 10 of the Supplementary Protocol, which gave the
Court the competence to adjudicate on matters including the contravention of
human rights. Article 10(d) of the Supplementary Protocol of this Court
states:
Access is open to the following � d) individuals on application for relief
for violation of their human rights; the submission of application for which
shall:
i) not be anonymous; nor
ii) be made whilst the same matter has been instituted before another
international court for adjudication �
Also, article 4 (g) of the revised Treaty states:
The high contracting parties, in pursuit of the objectives stated in article
3 of this Treaty, solemnly affirm and declare their adherence to the
following principles: recognition, promotion and protection of human and
peoples� rights in accordance with the provisions of the African Charter on
Human and Peoples� Rights.
[10] The principal question which is posed in the instant case, relates to
whether the facts of the case did constitute a violation of the human rights
of the plaintiff. Are the rights being claimed by the plaintiff fundamental
human rights guaranteed by the African Charter on Human and Peoples� Rights
and the UN Universal Declaration, 1948? Finally, does the plaintiff possess
the right to come directly before the Court of Justice of ECOWAS?
[11] While it can be stated right away that by article 10(d) of the Protocol
of the Court the plaintiff can access the Court, the issue as to whether the
matters complained of are human rights or not should be left for
determination at the trial. However by the combined effect of the said
provisions as to the competence to adjudicate on the matters as human rights
violations, same shall be determined at the trial, as provided in the
African Charter on Human and Peoples� Rights and the Universal Declaration
on Human Rights which the member states are signatory to.
THE NON-JOINDER OF PARTIES
[12] The Court also considered that there are no grounds for the defendants
to constitute a demurrer out of the fact that the Commonwealth Secretariat
was not summoned to the action. Indeed, the audi alteram partem rule targets
a case of an indispensable party that cannot be omitted and such a party is
described as a necessary party. The doctrine of jurisprudence states that �a
party directly involved in� the litigation should be made a party as to
allow his participation in the case, thus complying with the doctrine of
audi alteram partem which may not be the case in this application. The
defendants stated their inability to establish contact with the Commonwealth
Secretariat for the renewal of the contract in question. The complaints by
the parties are made up in diversity of legal points and some of them relate
to the connection of the parties to the Commonwealth Secretariat and why the
failure to join them is fatal to the plaintiff�s claim.
[13] On issue no 1, the defendants relied on the Supreme Court case, in the
case of A-G Lagos State v A-G Federation and contended that the failure to
join the Commonwealth as a party or proceed to arbitration as required was
fatal to the plaintiff�s case. Counsel to the defendants further relied on
the cases of Olajide Afolabi v Federal Republic of Nigeria (2004) supra and
Madulolo v Nkemdelim (1962) 2 SCNLR 341 wherein the condition for
jurisdictional competence were relied upon.
[14] On the converse, the applicant referred to the authorities relied upon
by the defendants to submit that same are most irrelevant and inappropriate
for the consideration of the instant case. He submitted that the non-joinder
was never an issue in the cases relied upon, therefore the ratio decidendi
are not on all fours with the instant case and urged the Court to
discountenance them. As to the case of Olajide Afolabi v FRN supra, referred
to by counsel to the defendant, which the counsel to the plaintiff contended
that it was most irrelevant, and that in the face of the instant case is
misconceived. The authority dealt inter alia on the competence of the Court
to adjudicate in respect of a matter instituted by an individual as opposed
to the provision of article 9 of the original Protocol of the Court in the
instant case, the issue for the consideration of the Court is on the
competence. The principles in the case of Afolabi therefore are on all fours
with the instant case regarding the point on competence.
[15] On the second point relating to non-joinder of parties, counsel to the
plaintiff reiterated the fact that it is the claim of the plaintiff or
applicant that determines the issue of jurisdiction of the Court and not the
defendants to the case. It follows therefore that the non-joinder of
Commonwealth Secretariat as a party cannot be fatal to the claim as to
warrant the Court to uphold the preliminary objection. It is clear to the
Court that there is no order sought against the Commonwealth Secretariat as
to warrant their being joined as a party to the suit arid it is safe to
conclude that the non-joinder of the Commonwealth Secretariat did not divest
this Court of its jurisdiction to hear and determine the matter before it.
See Mabal Ayonkoya and 8 others v E Aina Olukoya and Anor (1991) 4 NWLR (part
440) at 31 para E to F. Alhaja Refatu Ayorinde & 4 others. Alhaja Airat Oni
& Anor (2000) 75 LRCN 206 at 234 to 235 para H-D; Joseph Atuegbu & 4 others
v Awka South Local Government & Anor (2002) 15 NWLR (pt 791) 635 at 653 to
654 para H to B which were relied upon by Counsel.
[16] It is a well established position of law that the Court has
jurisdiction to join a person whose presence is necessary for that purpose.
The significance of the issue of jurisdiction is that where a matter is
heard and determined without jurisdiction it amounts to a nullity no matter
how well conducted the case may be. The matter of joinder of parties is of
great importance to the cause of action and there is a plethora of decisions
in municipal and regional courts on the matter. See the Supreme Court case
of A-G Lagos State v A-G Federation supra held at p 74 that �where the grant
of a relief will affect the interest of other persons not parties to a suit,
those persons are necessary parties and they must be heard or given the
opportunity to be heard: otherwise, If they are not before the court, the
court cannot grant the claim�. This Court states that the latter view has
sufficiently hit the nail on the head in that a party who is not shown to
have material connection with the matter cannot be joined. Further to this,
is that the Commonwealth has not been shown to have renewed the contract at
this stage. In the circumstance, a non- joinder of the said Commonwealth
Secretariat cannot be fatal. On that basis the objection is overruled.
[17] Learned counsel to Plaintiff further argued that there is no order
sought against the Commonwealth Secretariat as to warrant their being joined
as a party to the suit and concluded that the non-joinder of the
Commonwealth Secretariat did not divest this honourable Court of its
jurisdiction to hear and determine the matter before it. On this note he
relied on See Mabal Ayonkoya and 8 others v E Aina Olukoya and Anor (1991) 4
NWLR (part 440) at 31 para E to F. Alhaja Refatu Ayorinde & 4 others. Alhaja
Airat Oni & Anor (2000) 75 LRCN 206 at 234 to 235 para H-D; Joseph Atuegbu &
4 others v Awka South Local Government & Anor (2002) 15 NWLR (pt 791) 635 at
653 to 654 para H to B. Even though the Court appreciates the reliance on
local authorities, learned counsel appearing before this Court should
endeavour to expand the scope of their legal authorities to authorities from
international courts
Courts. It is in consonance with the principles of law that the plaintiff
has not made a claim against the Commonwealth Secretariat; any joinder of
the said Commonwealth would amount to bringing a party which is not
concerned with a case to court.
[18] Without examining all the authorities because of their limitation as
stated above, one cannot but rely on one of them for the purpose of emphasis.
It is now widely acceptable position of law that the court has jurisdiction
to join a person whose presence is necessary for the determination of the
suit before it.
[19] Turning to the points expressed regarding necessary parties, the Court
considers whether the Commonwealth Secretariat is a necessary party. It has
been defined that a necessary party to a proceeding is the party whose
presence is essential for effectual and complete determination of the claim
before the court. See Ojo v Oseni 1987 3 NWLR PT 66 page 422 and NNN Ltd v
Ademola 1997 6 NWLR Pt 76 page 76 at 83 paragraphs A-B, wherein the Court
decided that in considering whether a party has been properly joined in a
suit or whether there is a cause of action against a party, a trial court
can only look at the plaintiffs claim and not the defendant�s defence.
Applying these principles herein, it is the view that the disclosed facts in
the application of the plaintiff disclosed no necessary constituents to
warrant the Court to accede to the prayer sought in the preliminary
objection for non- joinder of parties. All known jurisprudence states that a
plaintiff can choose which party it deems fit to bring as a defendant, and
he would only succeed on the strength of his own case and not on the
weakness of the defendant�s case. Applying these authorities to the instant
application, it is the position of this Court that it is not necessary to
impose on the plaintiff to join the Commonwealth Secretariat as a party to
this suit and the failure to join them cannot be said to divest the Court of
its jurisdiction. The law cannot be clearer and fairer than the expression
on the non-joinder of Commonwealth Secretariat as a party. Consequently, the
application on this point fails.
NON-EXHAUSTION OF LOCAL REMEDY
[20] On issue two, learned counsel to the defendants submitted that it is
apparent that the plaintiff has not exhausted local remedy as provided in
article 56(5) of the African Charter. On that basis, he submitted that the
plaintiff cannot be permitted to enter through the window of article 10(d)
of the Supplementary Protocol of the ECOWAS Court. He further contended that
article 4(g) of the revised Treaty of ECOWAS enjoined the Court to recognize,
the promotion and protection of human and peoples� rights whenever same is
contravened but that such a claim shall be entertained after the exhaustion
of local remedy. He urged the Court to strike out the application on the
said grounds and direct the plaintiff to exhaust the local remedy in The
Gambia. For clarity, the provisions are herein produced:
Article 50: The Commission can only deal with a matter submitted to it after
making sure that all the local remedies, if they exist, have been exhausted,
unless it is obvious to the Commission that the procedure of achieving these
remedies would be unduly prolonged.
Article 56(5): Communications relating to human and peoples� rights referred
to in article 55, received by the Commission, shall be considered if they
are sent after exhausting local remedies, if any, unless it is obvious that
this procedure is unduly prolonged.
[21] The plaintiff drew the attention of the Court to the fact that the
claim was not based on articles 50 and 68 of the African Charter on Human
and Peoples� Rights as submitted by the defendants. It is stated that
articles 50 and 68 of the African Charter on Human and Peoples� Rights did
not require the exhaustion of local remedies, but the determination as to
whether the suit so filed is competent and that the reference to article
56(5) was a misconception. He therefore urged the Court to discountenance
the argument proffered in support of issue two.
[22] On examination of the said article 50, it is clear that the said
article refers not to any organization but the Commission. Consequently that
provision of article 50 can not be applied stricto senso to this case
pertaining to the exhaustion of local remedy and its relevance to this Court.
[ed � no para 22 in judgment]
[23] On the question of article 68 of the African Charter as raised by the
defendants, it is the position of this Court that its application has no
relevance whatsoever in the consideration of the claim before it and
therefore the objection is untenable.
[24] On issue three, the defendants relied on the case of Abubakar Tatari
All Polytechnic v Maina reported in (2005) AFWLR page 225 to submit that the
applicant having accepted part of integrated pay package and rejected the
other part, the dispute revolves around whether his alleged claim of
outstanding balance is enforceable, under the Commonwealth salary scale or
the University of Gambia integrated pay scale. This point raises some facts
connected substantially to the scale or the University of Gambia integrated
pay scale. This point raises some facts connected substantially to the main/substantive
matter, lis pendens, in this Court. As always the courts frown and
discourage the consideration of substantive issues at the stage of
interlocutory, on the ground that the court would be determining matters of
substance without fully hearing the parties and their witnesses, if any.
This Court endorses the principles in this case as to preclude the
consideration of arguments on the issue of part payment which is a matter
for the main case. Article 87(5) of the rules of procedure provides that:
The Court shall, after hearing the parties decide on the application or
reserve its decision for the final judgment. If the Court refuses the
application or reserves its decision, the President shall prescribe new time
limits far the further steps in the proceedings.
[25] At this juncture, it is necessary to mention a salient point raised by
the defendants in respect of the competence of the Court for the alleged
violation of fundamental human rights of the plaintiff. One of the
innovations brought about by the Supplementary Protocol of January 2005 on
the Court and the Community is the extension of its powers to cover human
rights violations, as contained in article 10(d). The defendants maintain
that the rights claimed by the plaintiff are not positively conferred by
statute or contract but the Plaintiff countered by stating a contrary
arguments regarding same.
[26] The important question herein is whether the rights of the plaintiff as
discernible from the relationship of the parties are human rights as opposed
to contractual Rights and so on. Without delving into the issues in depth,
the two parties concur, in invoking the African Charter on Human and Peoples�
Rights and the Universal Declaration of Human Rights 1948. Article 10(d) of
the Supplementary Protocol of the Court is a special provision and did
relate to the parties accessing this Court on human rights contravention
while those provisions of the African Charter on Human and Peoples� rights
relate to those cases under the purview of the Commission, particularly, the
issue of local remedy as mentioned in article 50 of the said Charter has no
bearing with the cases under the premise of article 10(d) of the
Supplementary Protocol, on the grounds that the cases under article 10(d)
made it quiet clear that the bar to bringing action to this Court must be
those cases of lis pendens in another international court for adjudication.
[27] Consequently, the objection herein regarding the non exhaustion of
local remedies has no bearing with the requirement in bringing this action
before this Court. The objection therefore is untenable. The action in this
case having been made under human rights violation falls under the ambit of
human rights infringement and amount to a justiciable claim. The material
put before the Court is in the realm of the main claim. To raise such an
argument herein would entail the full deliberation of the case prematurely.
In the circumstance, the objection on this ground also fails. For the
foregoing reasons as amplified, the preliminary objection fails in its
entirety.
DECISION
1) Whereas the defendants have failed to justify the facts in support of the
preliminary objection; the Court hereby decides that the preliminary
objection is dismissed on all the grounds argued except the points deferred
for consideration in the main/substantive action as provided by article 87
of the rules of procedure of this Court.
2) Whereas the defendants argued that the Court is devoid of its competence
to determine this case without the joinder of the Commonwealth Secretariat;
the Court decides that it is competent to hear the substantive case on its
merit despite the non-joinder of the Commonwealth Secretariat and that the
Commonwealth Secretariat is not a necessary party which must be joined by
the plaintiff.
3) Whereas the defendant argued that the Court is devoid of its jurisdiction
for non-exhaustion of the local remedy as provided in article 50(5) of the
African Charter on Human and Peoples� Rights; the Court decides that article
50(5) of the African Charter on Human and Peoples� Rights are available in
the proceedings before the Commission on African Charter on Human and
Peoples� Rights; and that article 10(d) of the Protocol gave no condition
precedent in accessing the Court except where the action lis pendens before
another international court.
4) Whereas the defendants argued the issues of the contract relating to the
parties subsisting and involving the Commonwealth Secretariat and that the
issues of payments which the plaintiff accepted part of vitiate the action
filed in breach of not exploring the settlement of same by is arbitration
and that the main application was not properly instituted under the human
rights violations and that the complaints of the plaintiff are not
justiciable as human rights violations, the Court decides that the issues
stated herein touch on the substantive case which by article 87(5) of the
rules of procedure of this Court shall he taken in the substantive action.
COSTS
Whereas the defendants made no specific application for cost in the
preliminary objection proceedings and whereas the award of cost is usually
made in the final judgment, with the award proceeding to the successful
party, the Court decides that the award of costs shall be made at the final
determination of the substantive proceedings. Consequently, no award of
costs is made. |
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